Estate planning is an essential element of ensuring that your assets and wishes are managed according to your desires after you pass away. For Indigenous Americans, estate planning can be particularly complex as traditional cultural practices have to mesh with the legal framework of the U.S.

Estate planning for Indigenous Americans often involves more than just the distribution of material assets. Traditional values, inter-generational living practices and cultural norms play a significant role in shaping the estate planning strategies that communities may want to implement. Many Indigenous cultures emphasize shared or tribal ownership and collective decision-making, which can conflict with the individualistic approach that traditional estate planning takes. In many instances, Indigenous customs and traditions surrounding death and inheritance must be considered, and these practices may not always align with state and federal regulations.

Legal framework

When talking about the legal framework for estate planning for Indigenous Americans, we must be mindful of the federal and tribal legal systems. The federal system assumes individual ownership of property based predominantly on title. The tribal system, generally, emphasizes shared or tribal ownership of assets, reflecting collective interests and cultural values. While individuals may have rights to use land or resources, the overarching principle tends to prioritize community well-being.

Tribal laws can vary widely regarding inheritance and property distribution. Some tribes may have specific rules that allow individuals to determine the distribution of their assets upon death, while others might adhere to shared or tribal practices that restrict individual control. The American Indian Probate Reform Act (AIPRA) was enacted by Congress in 2004 and governs the distribution of trust property (undivided interests in land and Individual Indian Money [IIM) accounts] and restricted land held by Indigenous individuals. AIPRA encourages having a will and mandates that wills be in writing and executed according to federal standards. A valid will allows Indigenous individuals to choose who receives trust property subject to the limitations of AIPRA. If a person passes without a will on or after June 20, 2006, AIPRA determines who receives trust property. 

Prior to AIPRA, state law controlled how trust property on reservations passed from one generation to the next for individuals who passed away intestate. AIPRA creates a uniform probate code for all reservations1 across the United States. AIPRA applies to all individually owned trust property unless a tribe has its own probate code that has been approved by the Department of Interior. It aims to simplify the probate process and reduce the fractionation of land interests, but it also introduces specific rules that must be followed. In addition to AIPRA, tribal governments may have their own legal systems and may have specific rules regarding inheritance and estate planning. It’s important for Indigenous individuals to consult with tribal legal experts to understand how their tribe’s laws work in conjunction with AIPRA. Generally, if there is a conflict, federal law takes precedence over tribal law; however, tribal governments have a degree of sovereignty and can enforce their own laws within their territories. This is why working with someone who has expertise in tribal law is imperative to ensure there is a valid estate plan. 

Challenges and considerations

There are a number of challenges and considerations to think about when estate planning for Indigenous Americans. One of the more significant issues for Indigenous estate planning is the fractionation of land interests. Over generations, land ownership has become highly diluted, with a large number of heirs owning a small percentage of a property. This complicates the management and transfer of these lands, making it essential for Indigenous individuals to address these issues in their estate plans. One of the goals of AIPRA is to address intestate fractionation by limiting intestate inheritance of fractional interests smaller than 5% to a single eligible heir. If you write a will, you can do almost anything you want with your property; however, in general, you can only leave your trust property or restricted property to eligible heirs. AIPRA defines eligible heirs as your children, grandchildren, great-grandchildren, brothers and sisters, half-brothers and sisters by blood, and your parents. If a family member is not eligible, AIPRA will look to the next eligible heir in line to make a distribution. If you pass intestate, AIPRA mandates that your spouse gets a life estate and holds property until their death and then it passes to your children. The land can be inherited by children, grandchildren, parents, or siblings. If none of those classes exist, the land goes to the tribe. 

If your ownership of the land is less than 5% of the tract, your spouse gets a life estate only if they live on the land, and, upon the spouse’s passing, it is inherited only by the oldest child or grandchild. This is known as the single heir rule and is designed to prevent further fractionation. Under AIPRA, the federal government, the tribe or other co-owners may purchase the land during the probate process. Consent of the beneficiary is required, but if the interest in the land is less than 5% and it passes intestate, no consent is required unless the beneficiary lives on the land. 

Beyond physical assets, many Indigenous Americans have cultural and spiritual assets that are of importance and have value. Estate planning should address how these assets will be preserved and passed on to future generations, ensuring that cultural practices and spiritual beliefs are respected and maintained. Some steps to consider as you go through the estate planning process include:

• Consulting with legal and cultural experts. Engage with attorneys who are familiar with both tribal and federal estate laws. Additionally, involve cultural leaders or elders who can provide guidance on how to integrate traditional practices into the estate planning process.

• Drafting a will and estate plan. Create a will that adheres to federal requirements while reflecting your personal and cultural values. Consider drafting additional documents, such as trusts, to address specific needs related to communal assets or land interests.

• Addressing land and property fractionation. Develop strategies to manage and potentially consolidate fractional land interests to prevent further fragmentation. This may involve working with tribal land management offices or organizations specializing in land tenure issues.

• Including provisions for cultural and spiritual assets. Clearly outline how cultural and spiritual assets, such as cultural artifacts, traditional knowledge, and community practices should be managed and passed down. This could involve setting up specific trusts or agreements to ensure these assets are handled in accordance with traditional practices.

• Reviewing and updating your plan regularly. Estate planning is not a one-time event. Regularly review and update your estate plan to reflect changes in personal circumstances, legal requirements, and cultural practices.

Bottom line

Finding a balance between traditional practices and modern estate planning requirements can be challenging. Proper planning and working with professionals who are knowledgeable about both cultural practices and federal law to create a plan will help ensure your assets pass to your beneficiaries in the most efficient way possible.